IMMIGRATION LAW AND LGBT COMMUNITY

Hello everyone! In this week's article, I will be covering immigration law and the rights of lesbian, gay, bisexual, and transgender persons, often grouped and referred to as the "LGBT" community. In the past, I've written about the right of same-sex couples to marry each other and how subsequent to this marital union, U.S. immigration law affords the same rights and benefits to same-sex marriages as they do to opposite-sex marriages (See Week 95 and 96's article "Same-Sex Marriages and Immigration Benefits"). This article will not only review the immigration rights of same-sex marriages; that is, lesbian and gay marriages, but will also cover the immigration rights of those who identify themselves as bisexual or transgender. Warning: For those of you who may be sensitive to issues of sexuality, and/or may find the topic of sexual identity and relationships other than straight heterosexual (man-woman) offensive, please be warned that this article will cover some of these issues. If this describes you, please do not read any further.

A Review of History

Prior to 2013, the LGBT community did not have many rights. At that time, immigration policy followed the federal Defense of Marriage Act ("DOMA"); specifically Section 3, which defined "marriage" as the legal union of a man and a woman. Therefore, under this law, same-sex couples legally married in a state could be treated differently, federally, than opposite-sex couples because same-sex couples did not meet the federal definition of couples who could be married. Things began to drastically change when in 2013, the U.S. Supreme Court in United States v. Windsor, held that Section 3 of DOMA was unconstitutional because it violated the 5th Amendment's Due Process Clause guaranteeing equal protection. Therefore, Windsor provided federal recognition for all state-approved same-sex marriages.

Immigration Rights of Lesbians, Gays, Bisexuals, and Transgender People

Lesbian and Gay Married Couples (Same-Sex). If you are a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national, you can sponsor your spouse for a family-based immigrant visa. After the ruling of Windsor, President Obama directed federal departments to ensure the decision of the Supreme Court and provide federal benefits for same-sex, legally married couples. Therefore, your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.

Bisexual Married Couples (Both Sexes). Bisexual people are those who are attracted to both sexes. Regardless of their gender, bisexuals are romantically attracted and/or have sexual feelings towards both men and women. Because romantic attraction is a private matter between consenting adults, and the law only deals with gender identification (ie., whether the married couple is opposite sex, or same-sex), bisexual couples can (1) get married, and (2) apply for subsequent federal benefits. There is no law that restricts bisexual married couples from any immigration benefit.

Transgender. Transgender individuals are those that have gender identity or gender expression that differs from their assigned sex. They do not identify with the sex and/or gender constructs that they were born into. Transgender people are sometimes called transsexual if they desire or have had medical assistance to transition from one sex to another. This transition could include hormone prescriptions and/or sex reassignment surgery.

As with the other groups in the LGBT community, transgender individuals have the same immigration rights as others. Therefore, if either you or your spouse, or both, are transgender, you may (1) get legally married, and (2) apply for lawful permanent residency of your spouse through a family-based immigrant visa afterwards. The only additional information needed is for transgender individuals who are post-op and have had sex reassignment surgery. If you have had sex reassignment surgery, then you will need to provide USCIS with medical proof from your physician regarding your gender identity and reassignment. The significance of this is only for disclosure of your changed gender - whether you are male or female; both of which have to do entirely with anatomy.

Life is Too Short Not To Be Happy

So, there you go: a brief overview of immigration law as it applies to the LGBT community. I know this subject may not be as openly discussed as it should be, especially with the older generation where traditional ideas and custom have been ingrained into the way we think about things, but it should be. Where it once was taboo to even consider, the idea that love knows no gender, no preconceived stereotype, has become modern place. And rightfully so because when it comes down to it, life is too short not to be happy. You love who you love. You owe it to yourself: Love what makes you happy! Sexual identity and attraction to others is a personal, private matter.

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Disclaimer: The information contained herein have been prepared for informational purposes only and are not to be considered legal advice unless otherwise specified. If you have a specific question regarding your personal case, please contact the Law Offices of Joseph Chitmongran for a full consultation.